- A REVIEW ON CONSTITUTIONAL COURT’S ARTICLE 17 OF
THE LAW NUMBER 5510 ON SOCIAL INSURANCE AND GENERAL HEALTH
INSURANCE - THE CONSTITUTIONAL COURT’S DECISION ON THE
INDIVIDUAL APPLICATION REGARDING THE TERMINATION OF THE
EMPLOYEE’S EMPLOYMENT DUE TO THEIR SOCIAL MEDIA
POSTS - NOTICE OF BREACH OF PDPL AGAINST ALLIANZ INSURANCE
INC. - 18/505 CAPITAL MARKET BOARD’S PRINCIPLE DECISION
NO. i-SPK 128.22 - INJUNCTION AGAINST META PLATFORMS FOR VIOLATION OF
ARTICLE 6 OF THE LAW ON THE PROTECTION OF COMPETITION
A REVIEW ON CONSTITUTIONAL COURT’S ARTICLE 17 OF THE LAW
NUMBER 5510 ON SOCIAL INSURANCE AND GENERAL HEALTH INSURANCE
Section 3 of the second part of Law No. 5510 sets forth the
short-term insurance provisions to which insured persons who are
self-employed or self-employed on their own behalf and account are
subject. Work accidents, occupational diseases, illness and
maternity are accepted as risks subject to short-term
insurance.
In the first paragraph of Article 15 of the aforementioned Law,
ailments other than occupational accidents and occupational
diseases that cause incapacity for work are defined as
sickness, and in the second paragraph, ailments and
disabilities related to pregnancy and maternity from the date of
the onset of pregnancy of the insured woman or the non-insured
spouse of the insured man, the woman receiving income or pension
due to her own work, or the non-insured spouse of the man receiving
income or pension, until the first eight weeks after birth, and in
case of multiple pregnancies, until the first ten weeks, are
defined as maternity.
Article 16 of the Law sets out the rights provided by the
occupational accident, occupational disease, sickness and maternity
insurance and temporary incapacity benefit is also listed among
them. Temporary incapacity is the temporary absence from work
during the rest period specified in the reports of the physician or
medical board authorized by the Institution in case of work
accident, occupational disease, illness or maternity. Temporary
incapacity benefit, on the other hand, is the benefit given during
the temporary incapacity periods specified in the Law in cases of
work accident, occupational disease, illness and maternity. In
cases of temporary incapacity for work, since the insured is
temporarily unable to work, their monthly or weekly earnings are
reduced and they lose income. Compensation for this loss of income
is provided by the temporary incapacity benefit.
Article 7 regulates the daily earnings to be used as the basis
for allowances and incomes. In the first paragraph of the
aforementioned article, the daily earnings to be taken as the basis
for the calculation of the allowances or incomes to be given or the
incomes to be connected in cases of work accident, occupational
disease, illness and maternity; in the last three months in the
twelve months preceding the date of work accident, in the case of
occupational disease, in the last three months in the twelve months
preceding the date of incapacity for work; in the case of maternity
and illness, in the twelve months preceding the date of incapacity
for work. However, for those who have reported less than 180 days
of short-term insurance premiums in the last year before the date
of incapacity for work, the daily earnings to be taken as the basis
for the allowance in case of illness and maternity cannot exceed
twice the lower limit of the daily premium based earnings on the
date of incapacity for work. In this respect, it is stipulated that
the calculation of daily earnings in cases of illness and maternity
will be made by a different method than the calculation in other
cases. According to this different calculation method, the amount
of temporary incapacity allowance to be paid to the insured in case
of illness and maternity risks will be less than those paid to
those exposed to other risks. In subparagraph (b) of paragraph 3 of
the aforementioned article, it is stipulated that in the
calculation of the daily earnings based on the allowance or income
of those who are considered insured pursuant to subparagraph (a) of
paragraph 1 of Article 4, the wages, bonuses, increases,
compensation and payments of this nature made pursuant to the
decision of the administrative or judicial authorities shall not be
taken into account for the months prior to the three-month period
taken as the basis for the calculation of the allowance and income,
while the phrase “…three months…” in the
aforementioned subparagraph was removed from the text of the
article by Law No. 7316. The removal of the phrase in question from
the text of the article constitutes the rule subject to the
lawsuit. In this respect, while before the rule, in the calculation
of the daily earnings based on the allowance or income, those
related to the months prior to the three-month period taken as the
basis for the calculation of the allowance and income from the
wages, bonuses, raises, compensation and payments of this nature
made in accordance with the decision given by the administrative or
judicial authorities are not taken into account, after the rule,
those related to the months prior to the period taken as the basis
for the calculation of the allowance and income will not be taken
into account.
Article 60 of the Constitution states that “Everyone
has the right to social security. The State shall take the
necessary measures and establish the organization to ensure this
security.” It is regulated that the State must provide
social security to all its employees without discrimination.
However, the rules subject to the lawsuit limit the right to social
security of those exposed to these risks by stipulating a reduction
in the amount of temporary incapacity allowance to be paid in cases
of maternity and illness.
Article 13 of the Constitution states that “Fundamental
rights and freedoms may be restricted without prejudice to their
essence only for the reasons specified in the relevant articles of
the Constitution and only by law. Such limitations may not be
contrary to the letter and spirit of the Constitution, the
requirements of the democratic social order and the secular
Republic, and the principle of proportionality.” It
should be noted that the restriction stipulated in the Constitution
must be proportionate and in accordance with the reason.
The rules reduce the average daily earnings that can be obtained
in the form of maternity and sickness benefits. In addition to
those who abuse the system by violating the rules, insured persons
who comply with the rules and are exposed to the risk of maternity
or sickness will also be negatively affected by this reduction. The
rules do not include safeguards to distinguish these policyholders
from those who abuse the system. Therefore, it is concluded that
the limitation imposed by the rules imposes an excessive burden on
policyholders who comply with the rules and are exposed to the risk
of maternity or illness, and therefore cannot be said to be
proportionate.
As a result of the reasons explained, it has been found to be
contrary to Articles 13 and 60 of the Constitution, and the phrases
“…in case of illness and maternity…” and “…in
the twelve months preceding the date of the onset of incapacity for
work in case of maternity and illness…” in the relevant
article of the law have been removed unanimously.
As a result of the Constitutional Court’s decision, the
phrases in the Social Security and General Health Insurance Law
that are contrary to the principle of equality have been removed.
The principle of equality is laid down in the articles of the
Constitution. Every individual should have the right to social
security in equal amounts.
Link to the decision; https://normkararlarbilgibankasi.anayasa.gov.tr/ND/2024/31?KararNo=2024%2F31
THE CONSTITUTIONAL COURT’S DECISION ON THE INDIVIDUAL
APPLICATION REGARDING THE TERMINATION OF THE EMPLOYEE’S
EMPLOYMENT DUE TO THEIR SOCIAL MEDIA POSTS
The individual application numbered 2019/20965 and dated
13.12.2023 was published in the Official Gazette numbered 32502 on
27.03.2024.
The application relates to the claim that the applicant, who
works as a worker in a cleaning company, had their freedom of
expression violated due to the termination of their employment
contract due to their social media posts.
The applicant worked as a cleaner in a private cleaning company
subcontracted to the hospital under an indefinite-term employment
contract until their employment contract was terminated. The
applicant’s post that was the subject of the termination of
their employment contract was “People attack wherever they
see military vehicles. You blind ignorants, if there was a military
coup, would you have enough power to stop those tanks? It’s all
a scenario. The person you attacked is your soldier, you idiot. I
hate this country, I don’t know whether to laugh or cry, what
kind of ignorance is this?” The employer company
terminated the applicant’s employment contract for just cause
on the grounds that the post in question was insulting to the
President. Thereupon, the applicant filed a claim for reinstatement
against the employer, stating that the termination was unfair and
invalid.
Bakırköy 25th Labor Court dismissed the lawsuit. In
its reasoned decision, the court evaluated that the post shook the
employer’s trust and that the employer could not be expected to
maintain the employment relationship in this state, and concluded
that the termination was based on just cause.
Upon the appeal of the first instance court’s decision, the
25th Civil Chamber of the Istanbul Regional Court of Appeals (RCA)
decided to accept the appeal on the grounds that the
plaintiff’s defense was not taken before the termination. The
court decided to annul the decision, to accept the lawsuit and to
reinstate the applicant with the invalidity of the termination.
The decision was then appealed. The 9th Civil Chamber of the
Court of Cassation, which examined the file, reversed the decision
of the Regional Court of Appeals and dismissed the case. In its
judgment, the Court of Cassation stated that the case was in
support of the coup attempt and that this could be grounds for
termination for just cause.
As a result of this process, the applicant filed an individual
application on 07.06.2019. The applicant argued that the
termination of their employment contract violated their right to
freedom of expression and right to a fair trial, claiming that it
was not explained how the post they made in their private life,
which did not contain insult or humiliation, affected their work
life. The application was examined within the scope of freedom of
expression.
Article 25 of the Labor Law No. 4857 lists the reasons for
termination of employment contracts by the employer for just cause,
whether the term is fixed or not. In order for the employer to
terminate the employment contract, it is necessary for the employer
to show what the “situations that do not comply with the rules
of morality and good faith and the like” are.
In light of the reasons explained, the Constitutional Court
considered the applicant’s post as legitimizing, praising or
encouraging terrorism, terrorism and violence and did not consider
it within the scope of freedom of expression. As a result, it was
concluded that the restriction imposed on the freedom of expression
in the concrete case did not render the said right meaningless, met
a compelling social need and was proportionate. It should be
decided that there is no violation of freedom of expression.
Although social media posts are considered within the scope of
freedom of expression, this freedom is subject to a limitation. As
a matter of fact, terrorist organizations aim for their views to
spread and their ideas to take root in the society, and all means
can be used to achieve this goal. In this way, posts supporting
terrorist organizations cannot be shared under freedom of
expression. The fact that it is seen as a sharing that will
ultimately break the trust between the employer and the employee
has also resulted in termination for just cause.
Link to the decision; https://www.resmigazete.gov.tr/eskiler/2024/03/20240327-8.pdf
NOTICE OF BREACH OF PDPL AGAINST ALLIANZ INSURANCE INC.
Article 12, paragraph 5 of the Personal Data Protection Law No.
6698 states that “In the event that the processed personal
data is obtained by others through unlawful means, the data
controller shall notify the relevant person and the Board as soon
as possible. If necessary, the Board may announce this situation on
its website or by any other method it deems
appropriate.”
In the data breach notification submitted to the Board by
Allianz Insurance Inc. which has the title of data controller,
information down below was included;
-The breach was detected on 21.03.2024 when the National Cyber
Incident Response Center reported that some information belonging
to the data controller was offered for sale on the internet by
cyber attacker/s,
-As a result of the examinations made, it was determined that
unauthorized access was provided by cyber attacker/s to the
platform named “Service Desk”, where the data controller
agents submit their requests and complaints to the data
controller,
-The personal data affected by the breach cannot be determined
precisely, but identity, visual and audio recordings, communication
and financial data (including credit card information),
philosophical beliefs, religion, sect and other beliefs, health
information and association membership data may have been affected
by the breach,
-The exact number of people and records affected by the data
breach could not be determined,
-That the relevant groups of persons affected by the breach are
employees, business partners, customers and potential
customers,
Although the investigation on the issue is ongoing, it is stated
in the notification that the data subjects can receive information
about the personal data breach via e-mail and call center.
18/505 CAPITAL MARKET BOARD’S PRINCIPLE DECISION NO. i-SPK
128.22
In order to contribute to the reduction of the current account
deficit in our country’s economy through capital markets, thus
making our country’s growth sustainable by creating a current
account surplus and also contributing to green and sustainable
growth, it was deemed necessary to make different regulations on a
sectoral basis.
Accordingly, in public offering applications;
– Operating in the renewable energy sector, and as of the
financial statements of the last two years prior to the application
date, prepared in accordance with the Board’s regulations and
audited by private independent auditors, at least 75% of its
revenue is generated from renewable energy generation sales,
-Petrochemical production sales of at least 75% of its revenue
from petrochemical production sales as of the financial statements
of the last two years prior to the application date, prepared in
accordance with the regulations of the Board and audited by a
special independent audit,
-Production/service sales for the defense industry, which
operates in the defense industry sector or provides services to the
said sector in the field of information and communication
technologies and software, and which has at least 75% of its
revenue from production / service sales for the defense industry as
of the financial statements of the last two years prior to the
application date, which have been prepared in accordance with the
Board’s regulations and have undergone special independent
audit,
-Sales of unprocessed raw products obtained as a result of
agricultural production, at least 75% of its revenue as of the
financial statements of the last two years prior to the application
date, prepared in accordance with the Board’s regulations and
subject to special independent audit,
-Certified by a public authority to have an innovative and
scalable business model that generates high added value based on
advanced technology by supporting green and digital transformation
and has any two of the following conditions
At least 75% of its revenue as of the financial statements of
the last two years prior to the application date, prepared in
accordance with the Board’s regulations and subject to special
independent audit;
-As of the application date, to be accepted from one of the
regions designated as a Technology Development Zone by the Ministry
of Industry and Technology (Ministry) and to continue its
activities in this region,
-As of the application date, having an active R&D Center
approved by the Ministry in accordance with the Law No. 5746 on
Supporting Research, Development and Design Activities,
-Having a patent certificate issued by the Turkish Patent and
Trademark Office within the last five years,
-To receive support within the scope of R&D, Product
Development and Innovation Support from the Small and Medium-Sized
Enterprises Development Organization within the last five
years,
-Having a publicly funded R&D project started or completed
within the last five years.
For partnerships derived from operating activities, the amounts
are applied as follows.
TL For 2022 For 2023
Net Sales Revenue 180.000.000 270.000.000
Total Assets 300.000.000 450.000.000
INJUNCTION AGAINST META PLATFORMS FOR VIOLATION OF ARTICLE 6 OF
THE LAW ON THE PROTECTION OF COMPETITION
META Platforms Inc. is recognized as one of the five largest
technology companies. It is known that WhatsApp, which currently
offers ad-free and free service to users, was taken over by
Facebook Inc. in 2014, and that Facebook Inc., founded in 2004 in
the USA, is one of the world’s leading technology companies and
includes platforms such as Instagram and Facebook Messenger as well
as WhatsApp.
In 2021, the Competition Board started an investigation against
META Platforms Inc. on suspicion of abuse of dominant position
regulated under Article 6 of the Law No. 4054 on the Protection of
Competition with the data collected from Facebook, Instagram and
Whatsapp services.
According to the aforementioned information text, in order for
users to continue using WhatsApp, they must consent to the sharing
of their personal WhatsApp data with Facebook Inc. companies,
otherwise they will not be able to use WhatsApp as of 08.02.2021,
Facebook Inc. dictates to WhatsApp users to make their personal
data available to Facebook Inc. companies with this update.
companies, the data sharing obligation imposed on WhatsApp users as
a condition for using the service, and that the data obtained in
Turkey within the scope of the products and services offered by the
relevant undertakings are used within the scope of other products
and services offered by these undertakings.
In its latest update to its privacy policy, WhatsApp announced
that it would require users to merge their WhatsApp data with
Facebook data as a condition for continued use of WhatsApp, leaving
users with no other choice.
At the same time, when the data merging policies between the two
applications within META Platforms Inc. are examined during the
investigation, it is mentioned that the following data can be
transferred from Instagram to Threads;
-Instagram login information
-Instagram account number
-Instagram name and username
-Instagram profile information such as profile picture,
biography and links
-Followers
-Followed accounts
-Age information
It has been observed that the information provided is used
without user consent to provide, personalize and improve Threads
and META products.
The investigation also revealed that Facebook, another
application on the platform, allows advertisers to present their
advertising messages to potential customers with the intention of
eliciting a specific audience response in order to increase sales
and profits, that they use multiple channels to maximize their
return on investment, that there are many services and businesses
to help switch between channels, and that the widespread
availability of advertiser tools such as real-time dashboards and
cross-channel attribution technologies allows advertisers to
instantly shift their advertising budgets to the campaign that
offers the highest return on investment.
According to Article 6 of the Law No. 4054 on the Protection of
Competition, “It is unlawful and prohibited for
one or more undertakings to abuse their dominant position in a
market for goods or services in the whole or a part of the country,
either alone or through agreements or concerted practices with
others.”
According to Paragraph 7 of the Guidelines on Dominant Position,
for a conduct to constitute an infringement, the undertaking under
investigation must be in a dominant position in the relevant market
and the conduct must also be abusive. According to the same
Guidelines, abuse is when an undertaking in a dominant position
takes advantage of its market power to engage in conduct that is
likely to directly or indirectly reduce consumer welfare. The Board
may choose not to examine other factors if it is of the opinion
that the undertaking is not in a dominant position.
As a result of the investigations conducted within the scope of
the investigation, META Platforms Inc. was found to be in a
dominant position in the relevant consumption market and was found
to have abused its position through its conduct.
Within the framework of the current findings; it was ruled that
META made the activities of its competitors difficult by combining
the data of users who created Threads profiles based on Instagram
accounts without providing the users with the option of consent,
and abused its dominant position with WhatsApp and Facebook
applications, and it was evaluated that it would cause irreparable
harm and a temporary injunction was granted.
As a result of the Competition Board’s investigation, META
was imposed an administrative fine of TRY 4,796,152.96 over its
gross revenues for the year 2022 for each day starting from
December 12, 2023 until it fulfills its obligations.
Link to the decision;
https://www.rekabet.gov.tr/Karar?kararId=f0b80fbd-0054-4231-ba8a-5137a5eae326
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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